5 Colo. Code Regs. § 1002-21.17

Current through Register Vol. 47, No. 11, June 10, 2024

Section 5 CCR 1002-21.17 - Potential Conflicts of Interest

A.Definitions

For purposes of this regulation, the following definitions shall apply:

1) "Actual conflict of interest" means a direct and substantial financial interest of a Commission member or his/her employer in the outcome of any rulemaking, adjudication, or other action under consideration by the Commission. An official act directly and substantially affecting to its economic benefit a business or other undertaking in which a Commission member either has a substantial financial interest or is engaged as counsel, consultant, representative, or agency would constitute an actual conflict of interest.

2) "Apparent conflict of interest" means an interest in the outcome of any rulemaking, adjudication, or other action under consideration by the Commission that is not an actual conflict of interest but presents circumstances in which the public is likely to reasonably perceive that a Commission member has personal interests that demonstrate bias and will make it difficult for him/her to participate objectively in the action under consideration.

Neither an actual nor an apparent conflict of interest exists merely from the fact that a Commission member or his/her employer has a pre-established policy position on an issue under consideration.

B.Applicability

The provisions of this section shall apply to any and all proceedings requiring or resulting in a formal action by the Commission. Commission members shall not participate in such proceedings if an actual conflict of interest is determined to exist in accordance with this section, except as provided below. If an apparent conflict of interest is determined to exist, that fact shall be disclosed prior to Commission action.

C.Actual Conflict of Interest

1) If a member of the Commission perceives that he or she has an actual conflict of interest regarding any matter before the Commission, the Commissioner shall disclose the basis of the conflict of interest to the Commission and others in attendance before the discussion or hearing begins or as soon thereafter as the Commissioner perceives there is an actual conflict of interest and disqualify himself or herself from any further participation or voting on the matter at hand.

2) Members of the public, parties to the proceeding at issue, or other Commission members may bring to the Commission's attention circumstances that they believe constitute an actual conflict of interest for a Commission member with respect to the proceeding. If the Commission member in question does not agree that the conflict exists and does not agree that disqualification is appropriate, the Commission Chairman will ask for comments from the Attorney General's Office representative and from any members, parties, or public present. The Commission, after appropriate discussions, will vote on whether there is or is not an actual conflict of interest and the member will be bound by its vote. If the Commission determines that there is a conflict, such member shall be disqualified from further participation or voting on the matter at hand, except as provided below.

3) Commission members who do not participate in an action due to a conflict of interest will be counted as present for purposes of determining a quorum, if they remain present at the Commission proceeding in question. In this case, final action by the Commission requires a majority of the quorum present, counting both those members participating in the action and those not participating. The foregoing notwithstanding, if disqualification of the member or members in question would prevent Commission action, the member or members may participate in spite of an actual conflict of interest if they have complied with the disclosure requirements applicable to an apparent conflict of interest prior to acting.

D.Apparent Conflict of Interest

1) If a member of the Commission perceives that he or she may have an apparent conflict of interest regarding any matter before the Commission, the Commissioner shall disclose the basis of the possible apparent conflict of interest to the Commission and others in attendance before the discussion or hearing begins or as soon thereafter as the Commissioner perceives the possible apparent conflict of interest. Following this disclosure, the Commission member may participate in the proceeding, unless the Commissioner chooses to voluntarily disqualify himself/herself.

2) If a Commission member chooses to participate in a proceeding following disclosure of an apparent conflict of interest, the Commissioner may also give notice to the Secretary of State pursuant to section 24-18-110, C.R.S., listing the amount of any financial interest, the purpose and duration of any services rendered, and the compensation received for the services or such other information as is necessary to describe the Commissioner's interest.

3) In determining whether there is in fact an apparent conflict of interest that warrants disclosure,

Commission members shall take into consideration:

a) The need to maintain public confidence in the integrity of the government of the State of Colorado;

b) The likelihood that the Commission member in question will be able to participate objectively in the action under consideration;

c) The statutory requirement that Commission membership reflect geographical representation, including at least two members from west of the continental divide;

d) The statutory requirement that Commission membership reflect the various interests in water in the state;

e) The nature of the proceedings and issues in question (e.g. rulemaking v. informational hearings; issues of general applicability v. specific impact); and f) Whether the potentially affected party or parties wish to waive their objection to the potential conflict (where the affected parties can be clearly defined).

5 CCR 1002-21.17

38 CR 07, April 10, 2015, effective 4/30/2015

40 CR 07, April 10, 2017, effective 4/30/2017